Coal ash pollution case to be hard by federal appeals court

A legal battle over the storage of more than 3 million tons of coal ash in Virginia is headed to a federal appeals court in a case closely watched by environmentalists and energy companies.

The case pits the Sierra Club against the state’s largest electric utility, Dominion Energy.

A federal judge ruled last year that arsenic is illegally flowing from one of the sites where the utility stores coal ash — the heavy metal-laden byproduct of burning coal to produce electricity — and is polluting surrounding waters.

U.S. District Judge John Gibney Jr. found that Dominion had violated the U.S. Clean Water Act, but he did not impose civil penalties, saying the discharge from a retired power plant in Chesapeake does not pose a threat to human health or the environment.

The 4th U.S. Circuit Court of Appeals will hear arguments Wednesday.

Dominion is appealing Gibney’s finding that it violated the Clean Water Act

. The company argues that the federal law regulates discharges into navigable waters, not groundwater. The company said the regulation of groundwater contamination from solid waste such as coal ash is regulated by state laws and the federal Resource Conservation Recovery Act.

Gibney found that the landfill and ponds where the ash is currently stored convey arsenic into the groundwater and from there into the surface water, violating federal law.

Gibney issued an injunction, ordering Dominion to test surface water, groundwater, sediment and aquatic life for arsenic for at least two years. The injunction also requires Dominion to apply for a revised solid-waste permit from the state that includes corrective measures beyond simply capping the landfill.

The Sierra Club argues that the judge’s order did not go far enough to ensure Dominion will stop the discharge of arsenic.

“None of these directives will halt Dominion’s ongoing violations,” the group’s lawyers argue in a legal brief.

The Sierra Club is asking the court to order civil penalties against Dominion.

The environmental group wants Dominion to excavate the site and bring the ash to a synthetically lined landfill.

Dominion argues that the ash can be safely contained on site.

“The district court found no harm to human health or the environment,” Dominion spokesman Robert Richardson. “In this case, we are appealing the court’s finding of a Clean Water violation and we’re looking forward to our case being heard by the Fourth Circuit.”

From 1953 to 2014, Dominion operated a coal-fired power plant at the Chesapeake Energy Center, which sits on a peninsula between a creek and the Elizabeth River, near the mouth of the Chesapeake Bay.

Dominion has argued that excavating the site is not necessary and would cost millions. The company has said that capping the site in place with rainproof liners and other methods can protect water quality.

The case is being closely watched by environmental groups and energy companies alike.

“The problem of coal ash waste disposal is a huge problem nationwide,” said Robert Percival, a law professor at the University of Maryland and director of its environmental law program.

A major spill in Tennessee in 2008 brought national attention to the issue. A containment dike burst and sludge spilled out, coating more than 300 acres (120 hectares), dumping waste into two nearby rivers and destroying homes. Then a breach of a Duke Energy coal-ash impoundment site in 2014 caused a major spill on the Dan River, which flows in both Virginia and North Carolina.

“I think utilities sort of just hoped it would all go away, and it really hasn’t. The EPA hasn’t been all that aggressive in dealing with it,” Percival said.